Scottish criminal offence of failing to turn up at court corresponds with Irish offence

Peart J (for the majority): European arrest warrant – appeal of High Court order surrendering the respondent to Scotland – s. 16 (11) of the European Arrest Warrant Act, 2003 – certified point of law of public importance – correspondence of criminal contempt – Does the offence of failure to turn up in court in accordance with terms of conditional release correspond to any offence in this jurisdiction in particular to criminal contempt of court – appellant’s failure to appear at the court in Scotland as required by the terms of his conditional release were the common law offence of criminal contempt of court – bail – s. 13 (1) of the Criminal Justice Act, 1984 – whether there was correspondence with the common law offence of criminal contempt of court – Law Reform Commission’s Consultation Paper on Contempt of Court published in July 1991 – s. 70 of the Criminal Justice (Terrorist Offences) Act, 2005 – Article 2.4 of the Council Framework Decision (2002/584/JHA) – interpretation of s. 5 of the Act of 2003 – O’Malley Sentencing, Law and Practice, 2000, Roundhall – Miller: Contempt of Court, OUP, 2008 – O’Connor’s Justice of the Peace [1915 ed.] – the offence of failure to turn up in court in accordance with terms of conditional release corresponds to the offence under s. 13 of the Criminal Justice Act, 1984, but not to the common law offence of criminal contempt of court – order for surrender stands – appeal dismissed.

"I consider that the trial judge wrongly focussed on trying to find equivalence between the offence in Scotland and the s. 13 offence here, rather than focus on what the respondent actually did in Scotland according to both the warrant and the additional information provided (which forms part of what the Court may consider), and then to determine whether if the same was done here he would commit an offence here. The final words of Article 2.4 of the Framework Decision “whatever the constituent elements or however it is described” are important also."

Finlay Geoghegan J (concurring): conduct of the appellant and circumstances relevant to the offence with which he is charged of failing to appear at a procedural hearing on the 7th January, 2014, in Edinburgh as set out in the EAW - if transposed to this jurisdiction they would constitute an offence under s. 13 of the Act of 1984 - accordingly, correspondence is established.

"However the next question appears to be whether the offence created by s.13 of the 1984 Act is dependant on the accused having agreed to a bail condition by entering into a recognisance which created a monetary bond or defeasible debt as security for compliance with the condition? The offence created by s. 13 of the 1984 Act does not appear dependent in any way on the recognisance creating a monetary bond or a defeasible debt. Rather it is addressed to the condition to which an accused will have agreed and bound himself to perform in entering into an recognisance to be present in court at the end of the period of remand or turn up in court on any other date specified. Insofar as s. 13 of the 1984 Act creates an offence when a person released on bail in criminal proceedings fails to appear before a court “in accordance with his recognisances” it can only mean in accordance with the condition in his recognisance requiring him to appear before the court which he has subsequently failed to attend. The offence in this jurisdiction is therefore a failure to appear before a court in accordance with a condition to which he has agreed by entering into his recognisance."

Hogan J (dissenting): European arrest warrant – whether the Scottish offence alleging that Mr. Prieto failed to attend at the appropriate court hearing in accordance with his bail terms corresponds with an offence known to our law, specifically s. 13 of the Criminal Justice Act 1984 – Section 102A of the Criminal Procedure (Scotland) Act 1995 – s. 5 of the European Arrest Warrant Act 2003 – s. 70 of the Criminal Justice (Terrorist Offences) Act 2005 – s. 13(1) of the Criminal Justice Act 1984 (as amended by s. 23 of the Criminal Justice Act 2007) – whether there is correspondence between the Scottish and Irish offence – corresponding offence – s. 32 of the Criminal Procedure Act 1967 – s. 5(1) of the Bail Act 1997 (as amended by s. 8 of the Criminal Justice Act 2007) – s. 102A of the Criminal Procedure (Scotland) Act 1995 does not correspond to an offence under Irish law within the meaning of s. 5 of the 2003 Act – order for surrender should be declined.

"In my view, that question must be answered in the negative. I reach that conclusion for essentially two reasons which are inter-linked. First, unlike the Scottish offence, the Irish offence is not failure to attend at a designated court hearing simpliciter, since in this jurisdiction the offence is failure to attend in accordance with the recognisance. Second, in the context of a bail a recognisance necessarily implies that the accused has entered into a bond whereby he undertakes to pay a money sum in the event that he defaults on his bail conditions to attend court at a specified time and date."